Thirty-eight years ago, U.S. Reps. Bella Abzug and Edward Koch of New York introduced the Equality Act, a bill that sought to include homosexuals as protected classes under federal civil-rights laws. It did not pass that year or ever.
In 1994, the Equality Act morphed into the Employment Non-Discrimination Act (ENDA), co-sponsored by U.S. Reps. Gerry Studds and Sen. Ted Kennedy, both of Massachusetts. ENDA has now been proposed in 10 sessions of Congress. It also has never passed.
On July 21, President Obama sidestepped Congress and signed a version of ENDA into law. His executive order bars federal contractors, including faith-based agencies, from discriminating based on sexual orientation or gender identity.
While the order does not define “gender identity,” the term generally refers to a person’s preferred sexual identity, appearance or mannerism, even if different from that of his or her birth.
The executive order amends a 1965 directive that requires federal contractors “to not discriminate against any employee or applicant” on the basis of race, color, religion, sex or national origin; to “take affirmative action to ensure” such discrimination does not occur; and to communicate this policy “in all solicitations or advancements for employees.”
Because the order also covers the terms of employment, it requires federal contractors to extend benefits to same-sex spouses.
Obama’s order goes beyond ENDA in three regards. First, it subverts the legislative function of Congress, a practice that should concern everyone who cares about the constitution’s allocation of power among the branches of government.
Second, it provides no protection for religious groups. U.S. civil rights laws have long recognized the right of religious employers to hire people who share their faith and moral standards. Because the administration and some courts may interpret “sexual orientation” and “gender identity” to include related sexual conduct and because such conduct violates the religious values for many faith-based employers, the ENDA bill exempted religious employers from its mandate.
As recently as November, Obama and every Senate Democrat supported a religious-employer exemption in the ENDA bill. Scores of scholars and religious leaders, and even Obama’s 2012 director of faith outreach, pleaded with the president to continue this tradition in this executive order. When the president refused, two former chairs of the Catholic bishops’ conference rightly called the omission “unprecedented and extreme.”
The third step beyond ENDA is that the president’s order permits federal agencies to cancel contracts with noncompliant employers, including faith-based agencies, and blacklist them in the future. ENDA specifically forbade such a devastating sanction. For some ministries, barring them from working with the government to help others will shut them down. It will ensure that those in need will have less access to their best qualified helpers.
The administration’s callous willingness to place ideology over helping the needy recalls its 2011 decision to end a long-standing cooperative relationship with Catholic bishops’ Migration and Refugee Services Office to help refugees, immigrant families and human trafficking victims. Why? Because the bishops’ agency would not provide contraceptive and abortion counseling. So the administration cut off the group best qualified to provide this crucial aid in favor of others that had scored lower and were ill prepared to pick up the slack, to the detriment of those in desperate need.
The exclusion of conscience rights in Obama’s July 21 order is, we fear, part of a larger trend in which activists promoting sexual rights abandon any pretense of supporting “choice” and instead ostracize and punish those who do not support and practice their activist agenda.
One need look no farther than the $100 per employee per day fine the Affordable Care Act imposes on religious employers conscientiously opposed to triggering delivery of abortion-inducing drugs and devices to their employees.
Many states are calling for measures to punish and reeducate employers that hold traditional sexual values. Acting on their religious convictions could mean violating public accommodations laws, losing their property tax exemptions and even their professional licenses. As regards the latter, the cities of Boston, Washington and San Francisco and the state of Illinois have now deemed Catholic Charities unfit to place children for adoption because those agencies practice Catholic values regarding marriage. Hastings Law School refused to recognize a Christian Legal Society student group for similar reasons. This trend is not covert.
In our own state of Colorado, one Democrat senator proclaimed: “What to say to those who say religion requires them to discriminate? I’ll tell you what I’d say: Get thee to a nunnery. ... Go live a monastic life away from modern society, away from people you can’t see as equal to yourself, away from the stream of commerce where you may have to serve them. ... Go somewhere and be as judgmental as you like. Go inside your church; establish separate water fountains if you want.”
Hurting helpers is bad policy. As Cardinal Francis George, archbishop of Chicago, wrote for the "Fortnight for Freedom" observance, “Our vaunted American liberties” are “all being traded off in favor of freedom of sexual expression. That ‘freedom’ has become the trump card in almost every social dispute.” If current trends are allowed to continue, “the institutions that perform the works of mercy that have been integral to the Church’s mission for centuries will be forced to become, effectively, government institutions,” denied the opportunity to “contribute to the common good without compromising their collective conscience.”
The president’s executive order means also more lawsuits against an administration that already has provoked more litigation by religious groups seeking to protect their freedom than any administration in American history. It has all become too familiar.
We know what comes next. Those aligned with Obama will respond to such lawsuits with sound bites promoting a religious divide. They believe it is an acceptable price for electoral success.
To what end? The religious values that motivate ministries to serve are rooted in the recognition of the dignity of every person. As the Hebrew Bible teaches, “God created man in the image of himself” (Genesis 1:27). This religious insight provides the foundation for every type of right, including faith-based agencies’ free exercise right. Trampling this right diminishes all rights, as Lord Jonathan Sacks, a rabbi, has warned: “In America, the tree of liberty has religious roots. Don’t believe you can sever those roots and have the tree of liberty survive.”
Religious-liberty scholar Carl Esbeck identifies the fundamental issue as: “How do we live together as a people despite our deepest differences?” He then answers: “The nation’s better practice, historically, was to bracket off religious conscience and thereby stop making religious scruples fair game for partisan debate. America’s unique contribution to government theory was to separate matters of religious conscience from the machinery of politics and the will of the majority. That approach has brought us sectarian peace despite our unprecedented religious pluralism. Why trade in a system that has served this country so well for one that has served others so poorly?”
Martin Nussbaum and Eric Kniffin are Colorado attorneys
representing religious institutions nationwide.